Shelves that were once lined with vape pens and pods were nearly empty Tuesday afternoon at Exotic Smokerz in Columbus.

Owner Esam Al Mugari said he has had to throw away at least $40,000 worth of vape pens, juice pods and other products since October in preparation to be in compliance with new regulations for the sale of vaping products in the state.

“We can’t do (anything) about it. We had to throw it out,” Al Mugari told The Dispatch. “After the first of the month … we had all kinds of vapes we had to throw out.”

The Mississippi Legislature in March passed House Bill 916, which added regulations on cigarette and vaping products sold in the state. Any products not included in the newly created directory by the Commissioner of Revenue are no longer allowed to be sold in stores.

Businesses and producers were given 60 days after the directory was released, or until Dec. 1, to get all prohibited products off their shelves, according to the law.

To be listed in the directory, products have to receive either U.S. Food and Drug Administration marketing authorization or an application seeking marketing authorization from the FDA, the law said.

In a statement from FDA Commissioner Marty Makary in September, as much as 54% of vaping products sold in the U.S. are sold illegally and without authorization from the FDA. The FDA currently has 39 vapes authorized for sale in the country, Makary said.

Robert McMillen, associate director of Mississippi State University’s Social Science Research Center Tobacco Control Unit, said the law aims to regulate the vaping product market, which has been largely unregulated since products were popularized in 2018.

“It’s a vastly unregulated market currently,” McMillen said. “There are a lot of products that are on the market that are not addressed by the FDA, so they’re not really supposed to be on the market, but the FDA is overwhelmed with applications for authorization of their products to be on the market.”

McMillen said the FDA’s primary approach on enforcement has been to address products clearly marketed toward children that don’t serve the primary goal of being an alternative to cigarettes for smokers.

“The FDA is authorizing ones that technically, according to the FDA’s judgment, provide a greater public health benefit to adults who want to reduce their smoking or quit smoking cigarettes and are less of a risk of causing teenagers to initiate vaping,” McMillen said. “And a lot of the unauthorized products … are really blatantly targeting minors. I mean, they’re fruit flavored (and) would not appeal to a Marlboro Red smoker. And they’re quite often very high levels of nicotine in there, which increases the risk of addiction.”

As the smoke clears

McMillen said part of the reason for so many products being sold without authorization is because smaller companies and distributors lack the resources to go through the long process compared to larger corporate entities.

“In the public health community, this approach to the directory is kind of controversial, because it creates a playing field where the big tobacco companies that produce vaping products are able to get on the directory because it costs money to do the testing in ways that the smaller independents are not (able to afford),” McMillen said.

With these new changes from the Mississippi Legislature, smaller distributors will have a more difficult time competing and some stores could feel the squeeze of what products they can sell, McMillen said.

“I know that some vaping companies have said that they’ve been slowly swapping out products to things that are on the directory, so that they’re in compliance and their customers shouldn’t really notice a difference,” McMillen said. “Whereas other vape shops are being a little bit more doom and gloom about the process where they can only sell a handful of products.”

Before the change Al Mugari said he would typically sell at least $6,000 worth of vape pens, cartridges and other products in a week.
Al Mugari said he has already started putting FDA-authorized vaping products in his store, but he’s only gotten a fraction of the product offering he had before. He worries about how that will affect his business going forward.

“There’s a lot of difficulties, because … most of the brands we were selling were not on the list,” Al Mugari said. “… (Customers) like what they want. I can’t press them to buy something they don’t like … and we can’t sell (what’s not in the directory). We can get a violation if we sell it.”

Puff patrol

With the new law, stores can face fines for selling unauthorized vape products that get progressively more expensive with each violation. The first time stores are fined $500 for each unauthorized product found in stores, which goes up to $750 and $1,000 per product in subsequent violations, the law said.

McMillen said the strength of enforcement going forward will be interesting given the lack of enforcement pursued in the seven years since vaping was popularized.

“It’s going to be fascinating to see how enforcement works,” McMillen said. “I mean, if the state of Mississippi demonstrates that they’re serious about enforcing it and puts the resources into it, then I think it’s gonna dramatically change the landscape of vaping stores and what gas stations are selling. But if it turns out that the enforcement of this directory-based rule is not that strong and that shops can fly under the radar, then I don’t think it’ll have a big change at all.”

Any product that’s not in the directory and is found intended for sale at a store in Mississippi can be seized and destroyed by the Department of Revenue, the Attorney General’s Office or any law enforcement agency in the state, the law said.

Columbus Police Department Public Information Officer Bryan Moore said the department plans to enforce the law if any tips or calls are made to CPD about the sale of any illegal vaping products.

Moore said he expects CPD leadership to have additional meetings in the future regarding what practical enforcement efforts will look like but he expects CPD will like calling state and federal authorities in relation to any illegal activities as officers are made aware.

“(Enforcement will) have to look just like what the bill says,” Moore said. “If we find out they are selling merchandise that has been deemed unapproved … we’ll have to seize it.”

Starkville Police Department, Lowndes County Sheriff’s Office, Oktibbeha County Sheriff’s Office and Clay County Sheriff’s Office did not respond to several requests for comment by press time.